The Supreme Court of Vermont Law Blog: An on-going conversation about the practice of law in Vermont, featuring summaries of Vermont Supreme Court decisions, a dollop of lampooning, legal analysis, and a charming aggregation of creative thought.

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Monday, December 2, 2013

No review for you!

This is a short opinion based entirely on procedural grounds. Plaintiff is an inmate who was kicked out of the
Incarcerative Domestic Abuse Treatment Program (InDAP). At the time, he was serving a twenty six-month
to eight-year sentence for aggravated assault and escape. Participation in InDAP, along with meeting
other requirements, can help an inmate get early, supervised release.

When plaintiff was coming up on completion of his minimum
sentence, he requested a telephone hearing for visitation with his kids upon
release. He got the hearing. At the hearing, he asked his wife—the
complainant in his domestic-assault case—to be quiet and let him tell his side
of the story. He also accused his wife
of lying. Plaintiff contends that he was
polite and well-behaved throughout the hearing.

An account of plaintiff’s behavior at the hearing made its way to
the InDAP coordinator and plaintiff was placed on probation. Plaintiff was booted from InDAP six days later
on the bases that he “continuously justifies abuse towards his partner and
blames others for his actions,” he “is just going through the motions to get
through the program,” and he had “another person call his victim of record
after being placed on probation for abuse towards her during the court call.”

Plaintiff attempted to appeal within DOC, but was unsuccessful,
and DOC’s reasons for rejecting the appeal seem objectively tenuous. At any rate, plaintiff appealed to superior
court, arguing that the DOC’s decision was appealable under Vermont Rule of
Civil Procedure 75. The state moved to
dismiss, based in large part on this case, which essentially held
that programming decisions within the DOC Commissioner’s discretion are not
appealable under Rule 75. The superior
court granted the state’s motion, and plaintiff appealed.

The standard of review is de novo, and the SCOV takes all the
plaintiff’s allegations as true. The
SCOV notes at the outset that there is no absolute right to review of
administrative decisions, as well as the SCOV’s historical application of this
principle to DOC programming decisions.
As Bob Dylan said, You don't need
a weather man to know which way the wind blows. But I’ll tell you anyway: this wind ain’t
blowin’ anywhere.

Though the SCOV acknowledges the oft-allowed Rule 75 review of
administrative decisions, the SCOV begins by noting that no statute allows
review of DOC programming decisions, following up with the observation that the
case mentioned above “looms over the discussion.” It is with this lens that the SCOV looks at
plaintiff’s mandamus and certiorari arguments.

The SCOV notes its prior reasoning that the DOC’s programming-requirements
decisions cannot be “reached via mandamus because there [are] no pre-existing
duties to enforce.” The SCOV also notes
the inapplicability of “certiorari, because the DOC is not a lower court or
inferior tribunal.”

Despite plaintiff’s arguments that the case is distinguishable as to
mandamus (a court’s order to a lower court or agency) because his case involves
termination from the programming rather than a programming-requirements
decision, the SCOV reasons that this is a distinction with no practical
effect. The decision is still a programming
decision that is not reviewable.

Plaintiff’s last-gasp argument is that this is an extreme and
arbitrary abuse of discretion. The SCOV
doesn’t bite. Though the SCOV
acknowledges that this type of review is sometimes available, it is not
available in this case. The SCOV notes
that this type of review applies in situations where there is a clear duty and
a complete abdication of responsibility on the part of an administrative
entity. Plaintiff’s case just doesn’t
cut it, apparently.

Certiorari, as noted above, doesn’t apply “because the DOC is not
‘performing the functions of a quasi-judicial body when it establishes
programming requirements.’” And so the
SCOV affirms the trial court’s dismissal of plaintiff’s case.

I’d guess that plaintiff,
given his history, will henceforth refer to Rheaume
v. Pallito (the case mentioned several times above) as “that damned case.”